Environment Protection Authority v Shell Co of Australia Ltd (No 2)

[1999] NSWLEC 287

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority V Shell Co of Australia Ltd (No 2) [1999] NSWLEC 287

PARTIES

PROSECUTOR
Environment Protection Authority

DEFENDANT
Shell Co of Australia Ltd

NUMBER:

50071 of 1997

CORAM:

Bignold J

KEY ISSUES:

Environmental Offences :- Environmental Offences - evidence of knowledge by Prosecutor of matters relevant to the charge of negligently causing a substance to leak

LEGISLATION CITED:

Environmental Offences and Penalties Act 1989 s 12(7)

DATES OF HEARING:

11/08/1999

EX TEMPORE JUDGMENT DATE:

11/08/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D Buchanan SC with Mr D Jordan, Barrister

SOLICITORS
Environment Protection Authority

DEFENDANT
Mr N Hemmings QC with Mr I Hemmings, Barrister

SOLICITORS
Coudert Bros

JUDGMENT:

IN THE LAND AND Matter No . 50071 of 1997

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 8 November 1999

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

SHELL CO OF AUSTRALIA LTD No 2

Defendant

JUDGMENT ON ADMISSIBILITY OF EVIDENCE

Bignold J:

1. In the course of cross-examination of Mr Carter, an Environment Protection Authority (the EPA) officer, a question has arisen concerning the admissibility of evidence of the state of knowledge of the EPA (particularly via its authorised officers) of the matters which have been particularised as the relevant acts or omissions of negligence by the Defendant in the subject charge of an offence against s 6(1) of the Environmental Offences and Penalties Act 1989

2. The question arises in the context of the Defendant's Notice of Motion seeking dismissal of the summons on the ground that the proceedings had been commenced outside the prescribed statutory period of limitation.

3. In the present case the Prosecutor in reliance upon the Environmental Offences and Penalties Act s 12(3) has specified 15 July 1994 as the date on which evidence of the offence first came to the attention of any relevant authorised officer.

4. The Defendant challenges this specified date by seeking, inter alia, to prove to the contrary.

5. In its quest of this task, the Defendant seeks to establish the state of knowledge of the EPA on matters relevant to the alleged negligence of the Defendant, for example, knowledge by the Authority that was in existence before 15 July 1994 concerning the propensity for underground storage tanks installed in service stations to leak petrol etc.

6. The Prosecutor objects to the evidence as not being “relevant” in the sense defined by the Evidence Act to the question before the Court of when evidence of the offence first came to the attention of any relevant authorised officer.

7. ‘Evidence” of the offence is defined by the Environmental Offences and Penalties Act” s 12(7) as meaning “evidence of an offence means evidence of any act or omission constituting the offence”.

8. In my opinion, the Prosecutor's objection must be upheld since the evidence sought to be led deals not with evidence of the offence that was alleged to be committed but at its highest is evidence concerning one element of the offence, albeit a necessary element, namely, the negligence of the Defendant in “negligently causing a substance to leak in a manner which harms the environment”.

9. For these reasons the evidence sought to be led by the Defendant is not admissible.